Upper Tribunal (Immigration and asylum chamber), 2016-08-18, VA/05064/2014 & VA/05066/2014
| Jurisdiction | UK Non-devolved |
| Date | 18 August 2016 |
| Published date | 01 March 2018 |
| Hearing Date | 01 March 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | VA/05064/2014 & VA/05066/2014 |
Appeal Number: VA/05064/2014
VA/05066/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/05064/2014
VA/05066/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision Promulgated |
|
on 17 June 2016 |
on 18 August 2016 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
NAZAR AHMAD CHAUDHRY
SAEEDA NAZAR CHOUDHARY
(Anonymity direction not made)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(On behalf of an Entry Clearance Officer - Abu Dhabi)
Respondent
Representation:
For the Appellant: No attendance. Attendance of legal representative excused in advance following request for the matter to be dealt with on the papers.
For the Respondent: Mr S Kotas Home Office Presenting Officer.
DECISION AND REASONS
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On the 2 June 2015 First-tier Tribunal Judge Wyman allowed the appeals of the appellants’ under the Immigration Rules and Article 8 ECHR against the refusal of their application for entry clearance as visitors. The date of the refusal is the 23 June 2014.
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The Secretary of State sought and was granted permission to appeal to the Upper Tribunal. On the 20 November 2015 Deputy Upper Tribunal Judge Sheridan conducted the error of law hearing in which he found the First-tier Judge had made legal error and set the determination aside. In a decision dated 26 November 2015 Judge Sheridan allowed the appeal finding the decision to be a disproportionate breach of the appellants Article 8 Human rights.
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The Secretary of State sought permission to appeal to the Court of Appeal which came before the Upper Tribunal on the papers on the 6 January 2016. Pursuant to rule 45 of the Tribunal Procedure (Upper Tribunal Rules) 2008 the Upper Tribunal conducted a review of the decision resulting in the following notice being sent to the parties:
IN THE UPPER TRIBUNAL (Immigration and Asylum Chamber)
NOTICE OF OUTCOME OF REVIEW FOLLOWING RECIEPT OF APPLICATION FOR LEAVE TO APPEAL TO THE COURT OF APPEAL
Appeal No: VA/05064/2014
VA/05066/2014
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Appellants)
- v -
NAZAR AHMAD CHAUDHRY
SAEEDA NAZAR CHOUDHARY
(Respondents)
APPEAL DECIDED IN ENGLAND & WALES
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The above respondents, a husband and wife, applied for entry to the UK as family visitors for the purpose of participating in prayers following the death of the second respondent’s mother.
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The application was made after 25 June 2013 and refused on the 23 June 2014 by reference to paragraphs 41 (i), (ii), (vi) and (vii) of the Immigration Rules. A right of appeal was granted on limited grounds referred to in section 84(1)(c) Nationality, Immigration and Asylum Act 2002. For all applications submitted from 25 June 2013, a person refused entry clearance to visit relatives in the UK will be unable to appeal against that immigration decision except on (i) human rights and (ii) race relations grounds by virtue of s.52 of the Crime and Courts Act 2013 - the commencement date and transitional provisions being set out in the Crime and Courts Act 2013 (Commencement No. 1 and Transitional and Saving Provision) Order (SI 2013/1042).
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In Adjei (visit visas – Article 8) [2015] UKUT 0261 (IAC) it was held that (i) The first question to be addressed in an appeal against refusal to grant entry clearance as a visitor where only human rights grounds are available is whether article 8 of the ECHR is engaged at all. If it is not, which will not infrequently be the case, the Tribunal has no jurisdiction to embark upon an assessment of the decision of the ECO under the rules and should not do so. If article 8 is engaged, the Tribunal may need to look at the extent to which the claimant is said to have failed to meet the requirements of the rule because that may inform the proportionality balancing exercise that must follow. Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) is not authority for any contrary proposition; (ii) As compliance with para 41 of HC 395 is not a ground of appeal to be decided by the Tribunal, any findings concerning that will carry little weight, especially if based upon arguments advanced only by the appellant. If the appellant were to make a fresh application for entry clearance the ECO will, if requested to do so, have regard to the assessment carried out by the judge but will not be bound by those findings to treat the appellant as a person who, at least at the date of the appeal hearing, met the requirements of paragraph 41.
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The appeal was allowed under the Immigration Rules and Article 8 ECHR.
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Permission to appeal was sought and granted to the above appellant on the grounds the judge had failed to adequately assess the proportionality of the decision under Article 8 ECHR.
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The appeal next came before Deputy Upper Tribunal Judge Sheridan on 20 November 2015 who found legal error in the First-tier Judge allowing the appeal under Article 8 ECHR without giving reasons for why this was engaged or why the decision was not proportionate.
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The Deputy Judge refers to the decision in Abbasi and another (visits – bereavement – Article 8) [2015] UKUT 00463 (IAC) it was held that (i) the refusal of a visa to foreign nationals seeking to enter the United Kingdom for a finite period for the purpose of mourning with family members (siblings and uncles) the recent death of a close relative and visiting the grave of the deceased (father/grandfather) is capable of constituting a disproportionate interference with the rights of the persons concerned under Article 8 ECHR; (ii) the question of whether Article 8 applies and, if so, is breached will depend upon the fact sensitive context of the particular case; (iii) The Tribunal should adopt a structured and sequential approach to the Article 8 issues.
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Article 1 of the ECHR only requires a contracting state to protect human rights within its own jurisdiction. In Abbasi and another (visits – bereavement – Article 8) [2015] UKUT 00463 (IAC) the Tribunal referred to a number of cases in which Article 8 was engaged in burial cases but those cases concerned the family/private life of those already in the contracting state. None of the cases referred to in Abbasi concerned the rights of entry into a contracting state by a person from outside of the contracting state. Although Abdulaziz, Cabales and Balkandali v United Kingdom and SS(Malaysia) make it clear that there needs to be a family life with a person in the UK (the contracting state) and it is the impact of the decision on that person in the UK which effectively brings the case within Article1 ECHR jurisdictionally, the Tribunal in Abbasi did not refer to the jurisprudence in Kugathas when determining whether the appellant had an Article 8 family life connection with anyone in the UK. Nor did the Tribunal in Abbasi refer to any Strasburg jurisprudence (which could displace the comments in Abdulaziz, Cabales and Balkandali v United) in support of any contention to extend Article 8 in entry cases to protect the private lives of those not in this country. Whilst attendance at funerals/memorial services/family marriages may, as a matter of fact, have some relevance when considering whether the test in Kugathas is met as between an applicant and any family members he or she is visiting here, given the comments in Abdulaziz, Cabales and Balkandali v United Kingdom and SS(Malaysia) some question arises as to whether mere attendance at a funeral/memorial service/marriage can engage Article 8 in an entry appeal per se.
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The determination fails to consider relevant case law in relation to Article 8 or to properly address the basis on which permission to appeal to the Upper Tribunal was granted. It is proposed that the determination of Deputy Judge Sheridan be set aside and the appeal relisted for hearing before a salaried judge of the Upper Tribunal sitting at Field House at which the issues may be further considered. The finding by Judge Sheridan that the refusal interferes with a private life right is arguably wrong in law. In SS(Malaysia) 2004 UKIAT 00091 Starred the Tribunal said that private, as distinct from family life, is not a basis upon which a ECHR right of entry can be based since neither the ECHR nor the 1999 Act can be construed as providing for all those whose private lives are restricted in some way in a signatory or non-signatory country.
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The parties are invited to comment upon these proposals no later than 14 days from the sending of this notice to them. A failure to respond shall be taken by the Tribunal as agreement to the proposal.
Signed:
Upper Tribunal Judge Hanson
Date: 6 January 2016
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On 25 April 2016 the Upper Tribunal reviewed the matter further in light of the responses received and gave the following directions:
DECISION AND DIRECTIONS
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